NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1350-11T4

A-1351-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.M. and B.J,

Defendants-Appellants.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

J.M., Ja.J. and Jo.J.,

Minors.

______________________________

December 10, 2012

 

Submitted November 14, 2012 - Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from New Jersey Superior Court, Chancery Division, Family Part, Hudson County, Docket No. FG-09-109-10.

Joseph Krakora, Public Defender, attorney for appellants (Beryl Foster-Andres, Designated Counsel, for S.M. in A-1350-11, on the brief; Carleen M. Steward, Designated Counsel, for B.J. in A-1351-11, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph Krakora, Public Defender, Law Guardian, attorney for minors J.M., Ja.J. and Jo.J (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendants S.M. and B.J. (defendants or parents) appeal from an order dated September 29, 2011, terminating their parental rights to their children, Ja.J. and Jo.J., and terminating S.M.'s parental rights to a third child, J.M.1 We affirm, substantially for the reasons set forth in the trial judge's comprehensive written opinion dated September 23, 2011.

I

We summarize the most pertinent evidence as follows. The Division of Child Protection and Permanency2 (Division) removed the children from defendants' home on an emergency basis on March 5, 2008, because the home was filthy, the children were dirty and smelled of urine, and the parents were using illegal drugs. Both parents later stipulated that they had neglected the children, and waived a Title Nine fact-finding hearing on that issue. At the time of the removal, the three children were ages eight months, two years, and four years old. The children were initially placed in separate foster homes, but by February 2009, the Division had succeeded in placing all of the children with the same foster mother.

In addition to their drug abuse issues, both parents were later diagnosed as having serious mental health problems. They were given multiple opportunities to address their drug use, but S.M. resisted until her children had been in foster care for almost two years. B.J. continued to resist, even up to the time of the guardianship trial.

S.M. was placed into a comprehensive service program called Community Solutions in April 2008, but she repeatedly tested positive for drugs until she was terminated from the program in December 2008. The Division then referred her to an out-patient program at Integrity House in January 2009, but she continued to test positive for drugs until she failed out of the program in April 2009. In June 2009, S.M. was offered an available slot in the inpatient program at Integrity House, but she refused, claiming that the program was "too long." She was referred to another program, of her choice, which could not initially accept her because she had not been taking her psychiatric medication. By the time she got back on her medications, there were no beds available at the program.

Finally, in November 2009, when her children had been in foster care for a year and eight months, S.M. entered the John Brooks program, an inpatient treatment facility in Atlantic County. She successfully completed that program in May of 2010. When she was released, she received mental health counseling at Christ Hospital until October 2010, and was able to remain drug-free with that assistance.

B.J. was far less successful than S.M. in addressing his substance abuse problem. He repeatedly tested positive for drugs. When a bed became available at the John Brooks program in 2010, he refused to go there, and also refused to go to Integrity House. His assigned Division case worker made numerous additional efforts to get him into drug treatment, but he either refused to go or failed at the programs due to repeated drug use. As of November 17, 2010, he was still testing positive for marijuana and PCP, despite both the drug treatment and mental health services that the Division provided. After November 17, 2010, the assigned case worker was unable to contact him.

B.J. was also inconsistent in visiting the children, and his visitation sessions were marked by inappropriate behavior on his part. He screamed at the children, called them "spoiled," told them that he was trying to keep them "out of jail," and threatened to put one of the children's "head through the wall." He also brought a pregnant friend (a woman other than S.M.) to one of the visitation sessions. He later claimed that, although this woman was pregnant with his child, they had only a superficial relationship and he had no commitment to her.

Although B.J. was clearly a less-than-ideal life partner, and an inappropriate caretaker for the children, the record contains substantial evidence that S.M. was committed to an ongoing relationship with him and that he was her main source of social support. Division case worker Shannon Fields testified that both S.M. and B.J. told her they had "been together for many, many, many years." S.M told Fields that "her support system is [B.J.]." Fields further testified that "[t]hroughout the case [S.M.] has told me . . . that she relies so much on [B.J.], that she does not . . . think that she can parent these children without him."

Fields testified that when she was unable to locate B.J. prior to the guardianship trial, she asked S.M. where he was. S.M. initially denied knowing his whereabouts but finally admitted that she knew. S.M. also admitted to Fields "on February 11, [2011]" that they were "still together" as a couple. S.M. told Fields that B.J.'s clothing was still in her home and "that they're together." Fields also recounted seeing S.M and B.J. in the courtroom hallway on the first day of the trial. They were sitting close together, laughing and talking, with S.M.'s head on B.J.'s shoulder.

By the time the guardianship trial commenced, on February 22, 2011, the children had been in foster care for almost three years.3 They had been living with the same foster mother for the previous two years, and she was committed to adopting them. According to Fields, the foster mother was providing a stable, loving home. She testified that when the children were at visits with defendants, they were hard to control, but when Fields visited them in the foster mother's home

they're totally different kids. . . . They're hugging their foster mother. They're kissing her. They're listening to her prompts. They appear happy. They're comfortable. . . . [T]hey call her mom.

 

Based on her observations of the parents and children over several years, Fields expressed concern that although S.M. had done well for herself in completing drug treatment, she was still fragile. She was not participating in any aftercare programs. B.J. appeared to be her sole social support, and he also seemed dependent on S.M. as his social support. Fields did not believe that B.J. was a fit parent for the children, and she described the prospect of returning the children to defendants as "double trouble." In later trial testimony, Fields also recounted that she interviewed S.M. in April 2011, concerning her compliance with her psychiatric aftercare services, and S.M. reluctantly admitted that she had not taken her prescribed psychiatric medication since August 2010, because it did "not make her feel well."

The Division and Law Guardian presented extensive expert testimony, from Drs. Elizabeth Smith and Karen Wells, that B.J. was not a fit parent due to his ongoing drug addiction, his poorly-controlled bipolar condition, and his "grossly inappropriate" conduct toward the children.

The experts also testified that S.M. was not currently capable of independently parenting the children due to her psychological problems, diagnosed as borderline personality disorder and major depression,4 her demonstrated inability to control the children's behavior, and her relatively recent return to sobriety. She was not a safe parent for the children due to her continued dependence on B.J. as her main social support, and her psychological inability to protect the children from B.J. Continued social dependence on B.J. would also increase S.M.'s risk of relapsing into drug use, because B.J. was an active drug abuser. And, without an appropriate support network, S.M. could not possibly handle the stress of parenting three children.

The State also presented expert testimony that although the children had an affectionate bond with defendants, it was not a parent-child bond. Rather, the foster mother had become the children's psychological parent. The Division and Law Guardian experts testified that separating the children from the foster mother would cause severe and lasting psychological harm that neither defendant could mitigate. On the other hand, the foster mother would be capable of mitigating any harm caused by separating the children from S.M. and B.J.

S.M. presented testimony from Roxanne Robinson, a counselor at the John Robinson program she attended for drug treatment. Robinson testified to S.M.'s success in the program. However, she also confirmed that graduates of any residential drug program are still at "high risk" of relapse and need a strong support system when they leave the program, to maximize their chances of remaining drug-free.

On S.M.'s behalf, her sister testified that she had offered to care for the children after the Division took custody of them. However, the sister admitted that, at the time, she was living with her mother and the mother's husband, who had a criminal record. She further admitted knowing that her mother was disqualified as a caretaker due to the husband's criminal background. The sister later moved elsewhere, but she never notified the Division that she was no longer living in the same location as the husband.

At the August 2, 2011 hearing date, S.M. presented testimony from a licensed therapist, Dorothy Rose, who initially treated her in 2008 and again in March 2011. Rose testified that S.M. seemed much improved when she saw her in 2011. S.M. appeared to understand the importance of ending her reliance on B.J. for support, in order to regain custody of her children. However, Rose did not opine that S.M. was currently able to parent her children. Instead she testified that S.M. should have increased visitation with the children, to "see how that goes. See if she really is independent from [B.J.]." Because Rose had not seen S.M. since March 2011, she did not know whether S.M. was currently taking her prescribed medications. Neither defendant testified at the guardianship trial.

In a comprehensive written opinion, the trial judge analyzed the four prongs of the best interests test, as set forth in N.J.S.A. 30:4C-15.1a, and concluded that the Division had proven by clear and convincing evidence that termination of defendants' parental rights was in the children's best interests. Addressing the first prong, the judge was "satisfied that the safety, health and development of the children were significantly endangered as a result of the mental health problems and substance abuse problems of both parents." He stated that, when the children were initially removed, "the home was a mess, the children were not being cared for and both defendants had no understanding of the harm to the children." And, the judge found that, while the home was "filthy, unsanitary and highly dangerous . . . the unaddressed mental health problems of both parents would clearly have endangered the children's health and development even further had the removal not been made."

The judge next found the Division met prong two for both parents, noting the "uncontroverted testimony . . . that [neither], S.M. or B.J., are capable of parenting individually or jointly." The judge "accept[ed] the testimony that B.J. cannot parent individually or jointly," finding the testimony of both Dr. Smith and Dr. Wells credible. The judge stated that B.J. "brought a pregnant girlfriend to a visitation, threatened to put [J.M.]'s head into a wall, and told Dr. Wells that he beat up a work supervisor causing him to suffer thirty to forty stitches in his head."

Additionally, the judge found the testimony regarding the diagnoses of both defendants by Dr. Smith and Dr. Wells to be credible. However, citing the testimony of Dorothy Rose and Roxanne Robinson, the judge found that that "S.M. seems to understand the need to abstain from drugs as evidenced by her abstinence from November of 2009 up until the present." And he did not find any incidents showing S.M. was "so frustrated, depressive, or histrionic that she presents a danger in parenting." With regard to Dr. Wells' report, the judge found that "S.M. is hardly the basket case that some have suggested."

He stated that while S.M. was not on a level playing field with the foster mother because she only visited with her children bi-weekly, at Dr. Well's bonding evaluation "she was able to observe, appreciate what she observed, decide on appropriate action and then execute her plan." The judge found that, "S.M.'s performance at the bonding evaluation combined with the lack of any known incidents of bizarre behavior, her successful completion of John Brooks and her undenied abstinence since November 2009, compel this judge to say that he does not have a 'clear conviction without hesitation' of her inability to safely parent." However, the judge found that S.M. would not parent individually, but would only parent with B.J., and "B.J.'s use of drugs, including PCP, as well as his unaddressed serious mental health issues make him a clear danger to the children." Accordingly, "because . . . S.M. will parent with [B.J.] . . . she cannot parent the children safely." Additionally, for the second part of prong two, the judge accepted the testimony of Dr. Wells and Dr. Smith that "[s]eparat[ing the] children from [the foster home's healthy environment] would . . . cause serious psychological harm to [the children], including the oldest, even though he has the strongest attachment to S.M."

The judge found that, under prong three, the Division made reasonable efforts to provide the parents with services. He found the testimony of the caseworker, Fields, credible, "particularly in the area of substance abuse and mental health treatment . . . offered to both defendants." And the judge found that the Division made reasonable efforts to investigate other sources of placement, including S.M.'s sister and mother.

Finally, the judge found that prong four was satisfied. He opined that, "[i]f returned to S.M. even as an alleged single parent, B.J. will inevitably enter the picture and significant harm will befall these three (3) children. He will hurt these kids. Life with the foster mother, however, will be safe and stable." He stated that while emotional harm from termination of parental rights, especially for J.M., cannot be denied, "[i]t is but one factor[.] [W]hen balancing the relative harms . . . separation from the defendants provides enormous benefits." Based on the credible testimony of Dr. Smith and Dr. Wells that the foster mother could mitigate any emotional damage due to separation from the parents, the judge found that termination would not do more harm than good.

II

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

 
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
 
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

On this appeal, our review of the trial judge's decision is limited. Ordinarily, we defer to a trial judge's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citation omitted). And we owe special deference to the judge's credibility determinations. Cesare v. Cesare, 154 N.J.394, 411-13 (1998). In this case, we find that the record amply supports the trial judge's factual findings and, in light of those findings, we find no basis to disturb his conclusion that termination of defendants' parental rights is in the children's best interests.

On her appeal, S.M. raises the following points for our consideration:

I. THE DIVISION FAILED TO PROVE THE FOUR PRONGS OF THE BEST INTEREST TEST BECAUSE S.M. NEVER HARMED HER CHILDREN OR CAUSED ANY RISK OF SERIOUS HARM, SHE COMPLETED ALL OF THE SERVICES ASKED OF HER, AND DESPITE RECEIVING INSUFFICIENT VISITATION SHE MAINTAINED A STRONG BOND WITH HER CHILDREN WHO WISH TO BE RETURNED TO HER CARE.

 

A. THE DIVISION FAILED TO PROVE THE FIRST PRONG OF THE BEST INTERESTS TEST BECAUSE THE CHILDREN WERE HAPPY AND HEALTHY IN S.M.'S CARE AND THEY WERE NOT FACING ANY SERIOUS RISK OF HARM.

 

B. S.M. OVERCAME ALL OF THE ISSUES THAT LED TO REMOVAL AND WAS READY TO SAFELY PARENT.

 

C. THE DIVISION FAILED TO UNDERTAKE DILIGENT EFFORTS TO REUNITE S.M. WITH HER CHILDREN.

 

D. THE TERMINATION OF PARENTAL RIGHTS DOES MORE HARM THAN GOOD BECAUSE S.M. IS READY TO PARENT SAFELY, HER CHILDREN ARE STRONGLY BONDED TO HER, AND THEY WILL BE SEVERELY EMOTIONALLY HARMED IF THEY ARE NOT RETURNED.

 

In his appeal, B.J. raises the following point:

I. D.Y.F.S. FAILED TO SATISFY BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15.1(a), AND, THEREFORE, THE PARENTAL RIGHTS OF S.M. AND B.J. MUST BE REINSTATED.

 

Based on our review of the record, we find that both defendants' arguments are not supported by the evidence and are without merit. Except to the extent discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

S.M. contends that her children were never "harmed while in her care" and she "did not place them in any risk of serious harm." We cannot agree. The record reflects that when the Division first intervened in this matter, both defendants were regularly using illegal drugs, and they and their children were living in a state of utter filth. Moreover, the parents failed to appreciate that their dependency on illegal drugs could compromise their ability to safely parent their children. S.M.'s claim that she "enrolled in treatment shortly after" the children were removed from her custody is accurate. But she omits to mention that she continued to use drugs, and made no meaningful effort to participate in treatment until her children had been in foster care for almost two years.

However, her central contention is that she is now capable of safely and independently parenting her children. Unfortunately, the trial judge found otherwise, and the record supports his conclusion. The record strongly confirms the judge's finding that S.M. continues to be emotionally dependent on B.J. and that if the children were returned to her, she would permit him to co-parent with her. It is clear that both defendants attempted to present the appearance that they were no longer together, but that appearance was belied by S.M.'s admissions to Field, even while the trial was going on, that she and B.J. were still "together." S.M. repeatedly told evaluators that she could not imagine being able to care for her children without B.J.'s assistance. Even her own witness, Rose, clearly did not take S.M.'s newfound protestations of independence at face value.

Significantly, S.M. had the opportunity to testify on this critical point during the guardianship trial, and to let the judge determine her credibility. She did not, and neither did B.J. Instead, in the context of this appeal, S.M. submitted a certification, essentially asking for a "do-over" in which this court would judge her credibility, and second-guess the trial judge's findings, on a cold record. We decline to do so. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

We do not doubt that S.M. loves her children and wants to care for them. Her successful completion of drug treatment is praiseworthy and, it is to be hoped, will enable her to live a normal, productive life. But there is a vast gap between being able to care for herself and being able to undertake the enormous challenge of independently acting as a parent to three young children, one of whom has attention deficit hyperactivity disorder. The record contains strong evidence that S.M. would turn to B.J. for support, even though his serious and unaddressed mental health and drug problems make him a danger to both the children's safety and S.M.'s continued sobriety. See id. at 449-50; M.M., supra, 189 N.J. at 282-83.

Moreover, while S.M. was resisting and then finally undertaking drug treatment, her children were bonding with their foster mother, who is now their psychological parent. The record reflects un-rebutted expert testimony that separation from the foster mother would cause these children severe and permanent harm, which S.M. could not mitigate. We find no basis to disturb the trial judge's finding that termination of S.M.'s parental rights would not do more harm than good. See F.M., supra, 211 N.J. at 453-54.

In his appellate brief, B.J. essentially joins in S.M.'s arguments in support of her continued parental rights. He contends that he only wishes to maintain his parental rights so that he can continue to be a part of the children's lives, even if S.M. has sole custody of the children. It is clear that B.J. is not a fit parent and has no prospect of becoming fit in the foreseeable future. Moreover, as discussed above, the record reflects that his involvement in the children's lives would be far more extensive than he and S.M. have represented to the court, and his involvement would endanger the children's well-being. We find no basis to disturb the decision terminating B.J.'s parental rights.

Affirmed.

1 J.M.'s father, C.H., is not appealing from the termination of his parental rights.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 For reasons not clear on this record, the court did not enter a permanency order until after the guardianship trial started. On February 25, 2011, after the court had heard testimony from the Division's and Law Guardian's expert psychologists and a Division case worker, the court approved the Division's permanency plan to terminate parental rights. However, the trial judge made it clear on the record that he was not prejudging the separate issue of whether the Division had carried its burden of proof for purposes of the guardianship trial.

4 S.M.'s treating therapist, Dorothy Rose, also diagnosed her as having obsessive compulsive disorder.